IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
TONY ALLEN COOLEY,
Plaintiff,
v. CASE NO. 22-3141-SAC
DOUGLAS COUNTY SHERIFF’S DEPARTMENT, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Tony Allen Cooley is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently confined at the Douglas County Jail in Lawrence, Kansas (“LCJ”). Plaintiff filed a motion for leave to proceed in forma pauperis (Doc. 2). The Court will provisionally grant Plaintiff’s motion for leave to proceed in forma pauperis. Plaintiff alleges in his Complaint that CO Zimbicky made him miss a phone conference with his attorney. Plaintiff provides no other factual allegations in his Complaint. Plaintiff names the Douglas County Sheriff’s Department and CO Zimbicky as defendants. Plaintiff seeks monetary damages, an apology, and to have his “coffee returned.” (Doc. 1, at 5.) II. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570. The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION Plaintiff alleges that CO Zimbicky caused Plaintiff to miss a phone call with his attorney. It is well-established that a prison inmate has a constitutional right of access to the courts. However, it is equally well-settled that in order “[t]o present a viable claim for denial of access to courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.” Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518 U.S. 343, 349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately from the doctrine of standing.”). An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim. Lewis, 518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011)
(“To state a claim for violation of the constitutional right to access the courts, a prisoner ‘must demonstrate actual injury . . .—that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement.’”) (quoting Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)). Plaintiff has not alleged that missing one phone call with his attorney prevented him from accessing the courts or caused him actual injury.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
TONY ALLEN COOLEY,
Plaintiff,
v. CASE NO. 22-3141-SAC
DOUGLAS COUNTY SHERIFF’S DEPARTMENT, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Tony Allen Cooley is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is currently confined at the Douglas County Jail in Lawrence, Kansas (“LCJ”). Plaintiff filed a motion for leave to proceed in forma pauperis (Doc. 2). The Court will provisionally grant Plaintiff’s motion for leave to proceed in forma pauperis. Plaintiff alleges in his Complaint that CO Zimbicky made him miss a phone conference with his attorney. Plaintiff provides no other factual allegations in his Complaint. Plaintiff names the Douglas County Sheriff’s Department and CO Zimbicky as defendants. Plaintiff seeks monetary damages, an apology, and to have his “coffee returned.” (Doc. 1, at 5.) II. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570. The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION Plaintiff alleges that CO Zimbicky caused Plaintiff to miss a phone call with his attorney. It is well-established that a prison inmate has a constitutional right of access to the courts. However, it is equally well-settled that in order “[t]o present a viable claim for denial of access to courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.” Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518 U.S. 343, 349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately from the doctrine of standing.”). An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim. Lewis, 518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011)
(“To state a claim for violation of the constitutional right to access the courts, a prisoner ‘must demonstrate actual injury . . .—that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement.’”) (quoting Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)). Plaintiff has not alleged that missing one phone call with his attorney prevented him from accessing the courts or caused him actual injury. Plaintiff’s claim does not rise to the level of a constitutional violation. Courts have held that “[t]he missing of a single phone call may well have been an inconvenience, but the Constitution does not protect against mere inconveniences.” Dean v. Maxey, 2021 WL 2907901, at *1 (E.D. Tex. May 25, 2021) (noting that prisoners have
no constitutional right to unlimited telephone use and finding that while plaintiff complained that he missed a scheduled call with his attorney, he did not “allege that he suffered any concrete harm as a result of missing one phone call, or that he was unable to consult with counsel on other occasions”) (citations omitted), adopted by 2021 WL 2895186 (E.D. Tex. July 9, 2021). Plaintiff’s claim is subject to dismissal for failure to state a claim. IV. Response Required Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein. The failure to respond by the deadline may result in dismissal of this matter without further notice for failure to state a claim. IT IS THEREFORE ORDERED THAT Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is provisionally granted. IT IS FURTHER ORDERED that Plaintiff is granted until August 22, 2022, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein.
IT IS SO ORDERED. Dated July 21, 2022, in Topeka, Kansas.
s/ Sam A. Crow Sam A. Crow U.S. Senior District Judge